Bank of Visalia v. Smith

HARRISON, C.

July 13, 1894, S. Z. Curtis (since deceased) executed to the plaintiff a mortgage upon certain land in Tulare County, as security for the payment of a promissory note then executed by him to the plaintiff. The property covered by the mortgage is described therein as follows:—

'“The south half of the southwest quarter of section 24; also all of section 23 and the west half of section 24; all in township 17 south, of range 25 east, M. D. M.

“Also that certain water-ditch which conveys water to said lands for farming purposes, known as the Curtis Ditch; with all the water-rights and privileges appurtenant to said ditch, or by means of which said ditch is supplied with water.

“Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, and the rents, issues and profits thereof.”

[400]

Curtis died intestate April 4, 1896, without having paid the note, and the defendant W. M. Curtis was appointed the administrator of his estate. Thereafter, the plaintiff herein, in an action therefor, obtained judgment for the foreclosure of the mortgage, under which the mortgaged property was sold to B. E. Hyde, who subsequently conveyed it to the plaintiff. Curtis was at the time of executing the mortgage the owner of five shares of the capital stock of the defendant corporation, Wutchumna Water Company, which is still standing in his name on the books of the corporation, and the plaintiff seeks by this action a judgment declaring it to be the owner of these shares of stock, and directing the defendant W. M. Curtis to surrender the certificate therefor, and the defendant Smith, as the secretary of the corporation, to issue to it the certificate for the same, claiming that it acquired title thereto by virtue of the aforesaid mortgage and conveyance to it. The court found that the shares of stock were not included in the property mortgaged by Curtis to the plaintiff, and are not appurtenant to the land or other property mortgaged by him, and rendered judgment in favor of the defendants. Prom this judgment the plaintiff has appealed.

The shares of stock are not mentioned in the description of the property mortgaged, or in any of the proceedings for the foreclosure of that mortgage, or in the conveyance made upon the sale thereof, or in the conveyance to the plaintiff, but the plaintiff contends that they are appurtenant to the property mortgaged, and included in that portion thereof which specifies the Curtis ditch, under the clause “with all the water-rights and privileges appurtenant to said ditch, or by means of which said ditch is supplied with water.” This description does not, however, mention the shares of stock, nor do its terms give rise to any presumption that they are appurtenant to the Curtis ditch, or that they represent any water-right or-privilege, “by means of which said ditch is supplied with water.” “A thing is deemed to be appurtenant to land when it is by right used with the land for its benefit.’’ (Civ. Code, sec. 662.) Whether such appurtenance exists is a question of fact, to be determined upon extrinsic evidence, and the burden of establishing such fact is upon him who claims a right to the appurtenance. Shares of stock, as such, are not presumptively appurtenant to land, and if the plain